Should Courts Issue Unpublished Opinions?

NOTICE: This is an unpublished blog post. It may not be cited by any court or any party to any litigation.

A common practice for many courts is to issue unpublished opinions that may not be cited as precedent. These opinions are often short and consist of a few paragraphs. They are generally supposed to be limited to cases that can be resolved by clearly-established legal rules. According to one news article: “California courts of appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, only 1,047 were published. About one-third of federal appellate-court decisions reviewed in 2002 came in unpublished opinions.” These statistics are staggering. Are there really so many cases that do not warrant having precedential value?

Unpublished opinions that may not be used for precedent raise some serious questions. Our legal system relies upon precedent, and we bristle when judges depart from precedent. Yet should we allow judges to say that some opinions are not precedent-worthy? Now that these cases are all readily available electronically, the argument that it is impossible to publish all opinions does not seem persuasive. Another argument is that it would overburden the courts if they couldn’t write unpublished opinions, which are typically very short and hastily-written. If these opinions counted, the argument goes, then judges might feel compelled to spend more time researching and writing them. But wouldn’t this be a good thing? Maybe it would yield better opinions. So by issuing an unpublished opinion, the court is basically saying: “Here’s our decision. We don’t think it’s good enough to be considered as precedent, yet your case isn’t worthy of our spending a lot of time to write such an opinion.”

But what about judicial workload? That surely is a problem, but it still strikes me as fundamentally wrong for a court to issue a decision that it believes is not adequately researched or articulated. Perhaps courts don’t believe this, but if an opinion is adequately researched and articulated, why not publish it and give it precedential value? And if the problem is excessive workload, then shouldn’t there be another way to address it?

Fortunately, in federal courts the rules are changing. In 2006, the U.S. Supreme Court voted to allow the citation of unpublished opinions.

But the practice still remains alive and well in state courts.

When I was clerking in federal circuit court before the rule change, I was surprised at the number of unpublished opinions (called “memorandum dispositions” or “mem dispos” for short). In one case, I found a memorandum disposition that addressed and resolved an open question in the circuit — yet because it was just a memorandum disposition, I couldn’t cite to it or rely upon it. So the issue had been confronted in the circuit and resolved by a panel, but that panel struck me as being lazy and didn’t want to bother to write a real opinion and resolve the issue in the circuit.

In another case, the government in its brief pleaded with the court not to write a memorandum disposition on a particular issue, as several other panels had done in the past. These previous memorandum dispositions came out in diametrically opposed ways, and the government wanted the issue resolved in the circuit.

I think that unpublished non-precedential opinions should be abolished. If a case involves any issue that is unresolved in any given court, the panel should address it with a fully-researched and reasoned opinion. This will make less work for future panels and less work for future litigants. It will also help make the law more clear and definitive. If a case involves a no-brainer issue that has clearly been resolved by the court in earlier cases, then just issue a short opinion saying as much. There’s no reason why that opinion shouldn’t be published or have precedential value.

So is there something I’m missing? Is there a compelling argument in favor of unpublished opinions?

5 Responses

First: you kind of blur two distinct ideas together when you talk about “a court . . . issu[ing] a decision that it believes is not adequately researched or articulated”. When drafting precedential opinions, courts become nervous about language. It’s not that they haven’t thought about (and researched) the right way to decide the case, as much as they haven’t thought about the exact way to describe the principle on which they have decided it, and they fear that it might get taken out of context or start to stand for something different than they way they meant it. An opinion might be “adequately articulated” to dispose of the facts before the court, but not every possible set of facts. I have seen at least one en banc call made where the calling judge agreed with the outcome of the case, but objected to the way the principle used to describe it was articulated.

Second: “I think that unpublished non-precedential opinions should be abolished. If a case involves any issue that is unresolved in any given court, the panel should address it with a fully-researched and reasoned opinion.” But that’s kind of a non-sequitur. It is unfortunate that so many issues of first impression are decided in mem dispos, and I don’t think I’ll attempt to defend that. But then the solution is this: if there is no binding precedent on point, the court should write an opinion. But, as a former clerk, you know well that often “the law” (or, at least, the abstract principle of law) is perfectly clear (or has been articulated just fine four or five times before), and all that matters in the case before you is that the court below had sufficient evidence to support its factual determination to avoid clear error. Why force judges (and their clerks!) to go through recitations of the facts only to show that there was no clear error below? A mem dispo allows you to dispense with the facts and procedural history–information without which the opinion would be useless as precedent.

And why clutter the federal reporter with those? The fact that we now search using databases doesn’t avoid clutter–more opinions (and longer opinions) means more search results we have to wade through, more false positives because our database searches are (deliberately) overbroad, and a greater risk of overlooking something important. The fact that we don’t have to print these in books doesn’t make a glut of publications entirely unproblematic.

As a current clerk, I can tell you that I too have become frustrated when the only things I can find on point are mem dispos. And I can only imagine the frustration of repeat litigants who get different outcomes under the same facts.

I don’t have a problem with courts judiciously choosing to give “unpublished” (which really just means nonprecedential) status to certain opinions.

But I think it may actually be unconstitutional for them to prohibit citation to those cases as persuasive authority. From the Noerr-Pennington line of cases, we know that the 1st Amendment right to petition includes some sort of right to pursue nonfrivolous arguments in court.

Directing a court’s attention to that court’s own prior opinions essentially petitions for the court to follow certain reasoning (just as with any other nonbinding opinion — such as an out-of-jurisdiction case, a law review article, or an amicus brief.)

In addition, it petitions the court, for reasons of fairness and equity, to treat the current litigant the same as the past litigant.

That’s an interesting argument on Noerr-Pennington. Some jurisdictions allow you to cite unpublished decisions, but you must provide copies of the cases to opposing counsel and the court. The cases are treated as having only persuasive, not precedential authority. That seems to me much closer to acceptable.

Perhaps there should be a rule against unpublished decisions where a verdict or lower court ruling is reversed or altered in any way. After all, in such cases the law was evidently not clear to at least one participant in the proceedings, usually including the lower court.

The N-P argument really only comes into play if the court denies a meritorious motion for relief from the rule prohibiting citation rather than penalizing a litigant for ignoring the rule in the first place without seeking any relief from the court.

When I was clerking the only time the issue came up was in whether to cite to an unpublished appellate opinion (from another circuit, however) in which the issue was addressed in a hypothetical posed at oral argument, but then distinguished by the panel authoring the unpublished decision.

The longstanding controversy over unpublished opinions cannot be resolved here, but it can be noted that in general, the reasoning in unpublished opinions is not subsequently tested in the crucible of official legal discourse. There is an element of irony, therefore, when an unpublished opinion strikes expert testimony for want of peer review and publication.